Ottawa Cannot Legislate Climate Change Policy

Dec 09, 2011

Earlier this year the federal government introduced sector-by-sector emissions reduction regulations as its stand on climate change. However, according to Prof. Al Lucas and co-author Jenette Yearsley, the Constitution limits Ottawa's ability to enact climate change legislation limiting greenhouse gas emissions. Therefore, Canada can only enact comprehensive emission limits if the provinces are at the table and agree to the plan.

"Over the last decade, the Canadian government has not managed to produce a comprehensive climate change statute and has failed to adequately consider the constitutional implications of doing so," the authors write.

The Clean Air Bill, an unsuccessful 2006 amendment to the Canadian Environmental Protection Act (CEPA), focused on carbon credit trading and a technology fund credit mechanism to permit certain emissions-heavy industries to mitigate their production of greenhouse gases. The authors argue that this bill would likely have infringed on provincial jurisdiction over electricity generation facilities. They also argue that "the present federal government's proposed coal-fired electricity generation regulations are similarly flawed."

This has significant impact for Alberta's energy sector, especially the oil sands. The federal government has suggested in the past that it may need to impose emissions targets, or other emissions reducing regulation on the oil sands. According to Prof. Lucas, this would only be possible if Ottawa were to take the politically difficult route of using explicit criminal prohibitions.